TOWN ELECTIONS FOR CONSTRUCTION OF SEWERAGE SYSTEM AND ISSUANCE OF BONDS FOR FINANCING THEREOF

TOWN ELECTIONS FOR CONSTRUCTION OF SEWERAGE SYSTEM AND ISSUANCE OF BONDS FOR FINANCING THEREOF

1. Town elections in other than Class A and first class counties are to be conducted and canvassed by the town council.

2. A town election is not invalid where notice thereof was given prior to final passage by the town council of an ordinance requiring approval of the electors.

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                                                                   April 19, 1950

Honorable E. L. Sheldon
Prosecuting Attorney
Pend Oreille County
Newport, Washington                                                                                                              Cite as:  AGO 49-51 No. 258

Dear Sir:

            We have your request of February 18, 1950, for an opinion from this office on the following questions:

            1. By whom are town elections to be conducted and canvassed in counties other than Class A and first class counties?

            2. Is a town election approving the construction of a sewerage system and a bond issue for the payment thereof invalid because notice was not given prior to the final passage by the town council of an ordinance requiring such construction and bond issue?

            Our conclusions may be summarized as follows:

            1. Town elections in other than Class A and first class counties are to be conducted and canvassed by the town council.

            2. Such an election is not invalid where the voters were sufficiently advised of the issue and time and place for voting, and it cannot be shown that the result would have been different had there been strict compliance with the statutory requirements.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            Chapter 161, section 5, Laws of 1949 (5153-1 Rem. Supp. 1949), provides that all city and town elections in other than Class A and first class counties shall be conducted and canvassed by the local municipal officers normally charged with the conduct of such elections.  Under chapter 7, section 148, Laws of 1890 (Rem. Rev. Stat. 9169), the town council is charged with this duty.

            Please be advised that the Washington Supreme Court has determined that an election will be invalid if not conducted by those officers authorized by statute to conduct it.  InState ex rel. Grand Coulee Joint School District v. State Finance Committee, 25 Wn. (2d) 534, 171 P. (2d) 696, and State ex rel. School District No. 9 v. State Finance Committee, 178 Wash. 565, 35 P. (2d) 500, the elections involved therein were conducted by the school district, and the election boards were selected from the voters first appearing at the polls, although the applicable statutes established that these elections should be conducted by the county election board.  The court held in both of these cases that the elections were invalid.  In the case at hand, the election of March 14 would be considered invalid unless conducted by the town council.

            Chapter 193, section 2, Laws of 1941 (9354-5 Rem. Supp. 1941), requires a city or town council, when it shall be deemed advisable that a city or town construct a sewerage system, to provide therefor by ordinance and submit the proposed plan to the voters.  This section further provides that 10 days' notice of such election shall be given in a newspaper doing the town printing.  In your request of February 18 you state that the ordinance of the town of Newport had not received final passage before notice was given of the election to be held on the proposition of constructing a sewerage system.  Assuming the notice was defective to that extent, and that it was published prior to final passage, such irregularity, of itself, would not be sufficient to invalidate the election.  While the precise question has not been before the court, the general rule as announced in the case ofLoop v. McCracken, 151 Wash. 19, 274 Pac. 793, is that statutory requirements as to notice are directory rather than mandatory where it does not appear that the result of the election might have been different had there been a strict compliance with such requirements.

            In theLoop case the court cites Rands v. Clark County, 79 Wash. 153, 139 Pac. 1090, where notice of a special election for the issuance of county bonds was published a shorter time than required by law.  The court cites  [[Orig. Op. Page 3]] alsoLee v. Bellingham School District No. 301, 107 Wash. 482, 182 Pac. 580, where the statute required three publications of notice but only two were made.  The elections involved in these cases were considered valid inasmuch as the applicable statute did not expressly declare that lack of strict compliance would invalidate the election.  The rule in theLoop case has been followed in Groom v. Port of Bellingham, 189 Wash. 445, 65 P. (2d) 1060,Vickers v. Schultz, 195 Wash. 651, 81 P. (2d) 808, and Shaw v. Shumway, 3 Wn. (2d) 112, 99 P. (2d) 938.  In the first of these cases the court held that a port district election will not be set aside for want of statutory notice where the election was widely publicized and a vote was clearly an expression of the popular will.  In the latter two cases failure of the election board to post and publish notices for the length of time specified in the statute was held not to invalidate the elections where there was sufficient publicity and the actual vote demonstrated an adequate expression of the will of the voters.

            InDunn v. Centralia, 153 Wash. 495, 280 Pac. 26, a single publication in a daily newspaper of notice of the municipal bond election was held not to be substantial compliance with the statute requiring a publication for 10 days in each issue of the paper, and failure to give sufficient notice was not cured by the fact of notoriety where the majority of registered voters did not vote in favor of the proposition.  The results of these cases depend upon whether the voters have been sufficiently apprised of the circumstances of the election as demonstrated by the actual vote.  In the instance with which we are concerned notice was given one month before the election.  Inasmuch as your letter of March 27 states that the proposition was approved by a large majority, the mere circumstance that the ordinance in question had not been finally passed by the town council prior to notice of the election shall not vitiate the results of that election.

            Please be advised that the conclusions herein expressed are restricted to the questions asked.  This should not be considered an opinion as to the general validity of the bond issue.  That can only be determined upon an analysis and interpretation of all the circumstances and proceedings relative thereto.

Very truly yours,

SMITH TROY
Attorney General

LAWRENCE K. McDONELL
Assistant Attorney General